Hundreds of families are still being separated at the border

Eight months after a federal judge ordered the Trump administration to stop separating parents and children at the US-Mexico border, families are still being separated.

Newly released government data shows nearly 250 parents have been separated from their children since June 26. Meanwhile, a report released Thursday from the advocacy group Texas Civil Rights Project suggests that those separations might be dwarfed by the number of other relatives — siblings, aunts and uncles, grandparents, cousins — who bring a child to the US without her parents and are then separated from her by immigration agents.

A June order issued by Judge Dana Sabraw of the Southern District of California bars the government from separating families in most circumstances — and required them to reunite families who had been separated. (The overwhelming majority of those families have been reunited, or the child has been placed with a relative in the US.)

Since then, the government claimed in a Wednesday night court filing, it’s separated 245 families that are excluded from that order. But advocates argue that some of the continued separations for often murky “law enforcement purposes” do violate the order to keep parents and children together.

Separations of families that aren’t simply parent-child, though, aren’t included in the court order — or counted in separation statistics at all. The Department of Homeland Security maintains that it’s required by law to treat any child entering the US without a parent or legal guardian as “unaccompanied” and send him or her to the custody of Health and Human Services.

The Texas Civil Rights Project report is the first data on family separations to come from outside the government. The group’s lawyers interviewed thousands of immigrants being prosecuted for immigration violations at one of the 18 federal courthouses along the border over six months. They found 38 parents who’d been separated from children — but six times as many siblings and other relatives who had. At that rate, according to the new official statistics, 245 parents have been separated from children — but that dramatically understates how many families have been separated, because so have 1,500 non-parents.

Immigrants are only counted as “family units” if the adult is the parent or legal guardian

Children aren’t allowed to be held in immigration custody; instead, “unaccompanied alien children” are supposed to be referred to the Department of Health and Human Services for placement. Any child who is sent to HHS custody is legally considered “unaccompanied,” even if they entered the US with an older sibling or other relative — which is what made it so difficult to reunite families even after Judge Sabraw’s ruling, and why there are still so many questions about whether official statistics truly capture the scope of the family separation policy under the Trump administration.

Legally speaking, any child who comes to the US without a “parent or legal guardian” is an unaccompanied child.

That means, DHS officials point out, that when they apprehend a pair of siblings where one sibling is under 18 and the other is over 18 — or any other pair of relatives where the adult isn’t the parent or guardian of the child — they have no choice but to separate the two and treat the child as “unaccompanied.” They’re not even counted as “family units” in apprehension data — the child is counted as an unaccompanied child, and the adult relative as a single adult.

There aren’t a lot of “unaccompanied children” coming into the US these days compared to the number of “family units,” defined as at least one parent and at least one child. (In the 12 months prior to Judge Sabraw’s order, twice as many immigrants were apprehended in family units as unaccompanied children; now, the ratio is more than four to one.) But we have no way of knowing how many of those “unaccompanied” children did, in fact, have relatives with them — just not relatives recognized as such by US law.

The majority of separated non-parents the TCRP lawyers interviewed were siblings — often themselves under 21, and often, the TCRP report says, “traumatized by the separation.”

Ironically, once an “unaccompanied” child is referred to HHS, HHS officials work to find a relative living in the United States who can house the child while their immigration case is pending. If the child doesn’t have a parent living in the US, an adult sibling, aunt, uncle, or grandparent is usually considered a prime candidate to be a “sponsor.”

In theory, the relative from whom the child is separated at the border would be someone who could easily pick them up from government custody. In many cases, though, adult immigrants are summarily prosecuted and deported — or kept in immigration detention. So it’s not clear how many children who have been separated from relatives at the border have ended up being stuck in HHS custody without a relative to sponsor them — because they were separated from the relative they had.

Parental separations are rare — but they’re not always well explained

According to the new court filing, the federal government has identified 245 cases in which parents and children were separated after June 26. Given that more than 300 families were separated in a single week during the peak of the family separation policy, that’s a very steep decline — though advocates on the ground claim that the rate of separations is still higher than it was under the Obama administration.

The government maintains that when families are separated now, it’s for one of a few specific reasons: The parent has a criminal history or is separated for another “law enforcement purpose”; the separation is medically necessary (for example, the parent needs to be hospitalized, because the Department of Homeland Security can’t keep the child in custody until the parent’s return); or there isn’t enough evidence that the adult is actually the parent or legal guardian of the child.

But the nonprofit organization’s report suggests that in practice, some of them — particularly the “law enforcement” exception — are broader than they look.

The injunction against separating families didn’t include parents who had a “criminal history.” But Lee Gelernt of the American Civil Liberties Union says that was mostly because Sabraw wanted to reunite as many families as possible as quickly as possible — it wasn’t intended to be a blanket statement that the government was allowed to separate parents with any past criminal record. Furthermore, “law enforcement” separations can happen for a much broader array of reasons — including suspicions that are difficult to disprove.

The government’s statistics show that “law enforcement” separations accounted for the overwhelming majority of cases: 225 of 245, or 92 percent. Of the (much smaller) sample of parents interviewed in the TCRP report, though, only 22 of 38 had criminal convictions — 58 percent. (Some of those convictions were for serious crimes, but others were for simple controlled substance violations, reckless driving, or a decade-old misdemeanor assault charge.)

One father interviewed by TCRP was separated from his children in November after being accused by a CBP agent of being a gang member. The father’s lawyers investigated and found “no known criminal convictions in the United States or his home country of El Salvador, no tattoos indicating gang membership, and a long-time employer verified his good moral character.” That didn’t change CBP’s assessment or result in the father being reunited with his children.

In another case, lawyers found that a father seeking asylum for government persecution in his home country of Guatemala had been separated from his children because of an outstanding Guatemalan warrant. Upon checking with human rights defenders, the TCRP lawyers concluded that the warrant was retaliatory — and that it should serve as evidence in his asylum case, not of his unsuitability to care for children.

It’s not clear how many of the 225 parents separated for “law enforcement” purposes in the past eight months had no criminal convictions. And it’s not clear how exactly this compares to past policies. Because there is so little trust between lawyers and the government when it comes to family separations right now, though, any case in which CBP agents appear to have exercised discretion in separating children is coming under serious suspicion.